MTD Products Inc.v.Snapper, Inc.

Trademark Trial and Appeal Board

Sep 16, 1999

No. 91105924 (T.T.A.B. Sep. 16, 1999)

Paper No. 19
RLS/kk
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 9/16/99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
MTD Products Inc.
v.
Snapper, Inc.
_____
Opposition No. 105,924
to application Serial No. 75/099,534
filed on May 6, 1996
_____
Roger D. Emerson of Emerson & Associates for MTD Products
Inc.
Thomas E. Dorn of Dorn, McEachran, Jambor & Keating for
Snapper, Inc.
______
Before Simms, Seeherman and Walters, Administrative
Trademark Judges.
Opinion by Simms, Administrative Trademark Judge:
MTD Products, Inc. (opposer), an Ohio corporation, has
opposed the application of Snapper, Inc. (applicant), a
Georgia corporation, to register the mark YARD CRUISER
(“YARD” disclaimed) for lawn and garden equipment; namely,
riding lawn mowers.1 In the notice of opposition, opposer
alleges that it and its predecessors have, since 1933, used
Opposition No. 105,924
2
the marks YARD-MAN and MTD YARD MACHINES in connection with
riding lawn mowers and other lawn and garden products.
Opposer also asserts ownership of 15 registrations for these
products. Opposer pleads that applicant’s mark YARD CRUISER
for riding lawn mowers so resembles opposer’s marks YARD-MAN
and MTD YARD MACHINES for competitive products that there is
a likelihood of confusion.
In its answer, applicant has denied the essential
allegations of the notice of opposition, but it has admitted
that opposer owns the 15 pleaded registrations. While
applicant admits that the parties are competitors, it has
denied in its answer that the goods are directly competitive
or identical. Applicant asserts, however, that the term
“YARD” is a “generic descriptive term,” and that others use
marks with this term for similar goods.
The record of this case consists of notices of reliance
submitted by both parties as well as affidavits submitted
pursuant to stipulation under Trademark Rule 2.123(b).
Applicant’s application is also of record. The parties have
filed briefs but no oral hearing was requested.
The Record
Opposer’s record consists of status and title copies of
its pleaded registrations. These registrations include

1 Application Serial Number 75/099,534, filed May 6, 1996, based
upon applicant’s allegation of a bona fide intention to use the
mark in commerce.
Opposition No. 105,924
3
those covering the mark YARD-MAN for lawn and garden
tractors and structural parts thereof, hand and motor-
propelled lawn mowers and riding mowers and other lawn and
garden equipment, and for MTD YARD MACHINES (“YARD MACHINES”
disclaimed) for riding mowers and other lawn and garden
equipment, as well as lawn and garden tractors and
structural parts thereof. According to the stipulated
affidavits of record, opposer’s executive vice-president
indicates that opposer continues to use its registered marks
and that opposer has developed valuable goodwill associated
with these marks. Opposer has also submitted the affidavit
of a former employee of applicant who indicates that he
proposed and selected applicant’s mark in 1995, and that he
was aware of opposer’s mark YARD-MAN at that time.
According to the affidavit of applicant’s attorney,
submitted pursuant to agreement, he has determined, by
responsive letters from various registrants (attached to the
affidavit), that, among others, the following registered
third-party marks are in current use: YARD KING for lawn
mowers; YARD PRO for power-operated edgers and trimmers as
well as mowers; YARD WASTE MANAGEMENT SYSTEM for power-
operated grinders for processing yard waste; and YARDWARE
for power-operated grass trimmers, brush cutters, chain
saws, hedge trimmers, leaf blowers and sprayers. Applicant
has also submitted a status and title copy of its prior
Opposition No. 105,924
4
registration covering the mark “TURF CRUISER” (“TURF”
disclaimed) for riding lawn mowers, the same goods for which
it is now seeking to register the mark YARD CRUISER.
Arguments of the Parties
Opposer argues that the word “YARD” is the dominant
part of both parties’ marks, that applicant’s mark is
“substantially incorporated in its entirety” in opposer’s
“family” of marks and that the “YARD” portion of applicant’s
mark will stimulate a recollection of opposer’s marks.
Opposer contends that its marks are well-known and “command
a [sic] enormously high degree of recognition … by the
purchasing public.” Brief, 9. Opposer also contends that
only one of the third-party registered marks is used in
connection with lawn mowers. Since applicant’s mark and
opposer’s marks will be or are used in connection with
identical goods sold in the same retail outlets, such as
lawn and garden retailers, opposer argues that the marks
will “inevitably” lead to confusion. Finally, opposer
maintains that any third-party registrations should not aid
applicant in registering another confusingly similar mark,
and that any doubt in this case should be resolved in favor
of opposer, the prior user and registrant.
In its brief, applicant concedes that there is no
dispute as to the issues of priority or relatedness of the
goods in this case (riding lawn mowers). However, applicant
Opposition No. 105,924
5
takes issue with opposer with respect to the dominant part
of the parties’ marks, contending that the word “YARD” is
not dominant in the marks of either party. Indeed,
applicant argues that if one word is dominant in its mark,
it is the word “CRUISER”. Applicant also points out that
the words “YARD MACHINES” are disclaimed in all of opposer’s
registrations. Further, it is applicant’s contention that
“YARD” is either descriptive or suggestive of yard work or
lawn mowing. Citing McCarthy’s treatise, applicant argues
that a weak portion of a composite mark should not generally
be the basis for a finding of likelihood of confusion.
Considering the marks in their entireties, applicant argues
that the marks project different meanings and commercial
impressions.
Certainly, the mental image of a person [a
‘yard man’] employed to do outdoor work, such
as mowing lawns, will not be associated with
the image of a YARD CRUISER, a land ship or a
cruiser which is floating over tall grass, much
as a more conventional ship would float over
water. The over-all impression, when the marks
are viewed as a whole, evokes vastly different
images in the mind of the average purchaser and
would not be confusingly similar.
Applicant’s brief, 7.
Discussion and Opinion
Upon careful consideration of this record and the
arguments of the parties, we agree with applicant that, on
this record, confusion is unlikely. Although the parties’
goods must, for our purposes, be considered identical, they
Opposition No. 105,924
6
are nevertheless not inexpensive items, but are products
which presumably are purchased after some deliberation and
with some care. This fact, coupled with the obvious
differences in the sound, appearance and meaning of the
parties’ marks as well as the demonstrated third-party use
and obvious suggestiveness of the word “YARD” used in
connection with lawn and garden equipment, convinces us that
purchasers would not be likely to be confused if these marks
were to be used, even on identical goods. See, for example,
Maremont Corp. v. Air Lift Co., 463 F.2d 1114, 174 USPQ 395
(CCPA 1972)(LOAD-CARRIER for load-supporting and damping
units for vehicles held not likely to cause confusion with
LOADLIFTER for air springs for vehicles). Finally, the fact
that applicant’s mark may bring opposer’s to mind, and we
have our doubts that even that will occur, does not in and
of itself establish likelihood of confusion as to source.
See Jacobs v. International Multifoods Corp., 668 F.2d 1234,
212 USPQ 641, 642 (CCPA 1982).2
Decision: The opposition is dismissed.
R. L. Simms
E. J. Seeherman

2 The cases cited on pages 10 and 11 of opposer’s brief are
distinguishable on their facts.
Opposition No. 105,924
7
C. E. Walters
Administrative Trademark Judges,
Trademark Trial and Appeal Board